- The top legal and financial mistakes people make after an accident
- How to protect your rights before speaking with insurance companies
- Why documentation and medical follow-ups are critical
- What steps to take immediately after a crash
Transcribe
“Automatically transcribed”
Hi, I’m Steve Phillips. I’m the managing partner of Phillips Law Offices here in Chicago, Illinois.
I’m Stephen Phillips, also an attorney at Phillips Law Offices.
And I am Michael Phillips, also an attorney at Phillips Law Offices.
Here at Phillips Law Offices, we are one of the oldest and one of the most well-respected injury law firms in the state. The firm was founded in 1945 by my father, John Phillips, who immigrated here when he was nine years old from Sicily. Couldn’t speak a word of English.
He and my grandmother, and my grandfather, came here with suitcases. Grandpa, my father, their grandfather, put himself through college, three different colleges in four years, joined the Navy, went to law school, and in 1945, he hung out a shingle, and decided to specialize in and practice injury law, and only injury law, in the state of Illinois. He was very well respected.
He was president of the Illinois Trial Lawyers Association, which is the largest bar association in Illinois that represents solely injured people. He was a prolific writer and speaker, and I was told many times in law school by guest speakers and teachers, your dad is one hell of a lawyer. It was pretty cool.
And now, I’m fortunate enough, and honored, quite honestly, that both of our two sons have decided to join the firm, and to represent and protect injured people in families who have lost a loved one.
Welcome to Navigating Negligence. This is a podcast, a show where we’re going to break down legal insights and give you all some of the experience that we have, some of the real world examples that we’ve seen, and some recommendations or advice on what to do in any situation involving an injury or an accident. And we wanted to start this podcast because like my dad said, I call him Steve, like Steve said, he’s been in practice 41 years.
I’ve been in practice about seven years. Michael’s been in practice about two years. And together, we have a combined 60 to 70 years of experience.
And our firm’s been around for 76 years. And we handle catastrophic injury cases, spine injuries, to amputations, to death cases, all the way down to general car accidents and premises liability cases. We have a lot of experience.
We have five lawyers along with my brother, my dad and myself. We have Terry Quinn, who’s been with us for almost 30 years. And we have Alec Mizrobian.
Us five work on catastrophic injury and life-changing wrongful death cases. And we wanted to start a podcast to share some of those insights with you all. This is our first episode.
We’re going to have a number of great speakers, a number of revolving speakers. And we thank you very much for being with us. And stay tuned for additional episodes and more content.
Our first segment is the immediate aftermath of an accident. And what do you need to do right away?
Obviously, the first thing that a person should do is check to make sure they are okay. And make sure that their passengers are okay. Then, immediately get off the roadway.
Do not stop in the roadway. Do not stop for some reason to take pictures in the roadway, cars traveling around you, or anything like that to document it. That’s not what this is about.
We see that so often. Because what happens from time to time, and it’s not rare, is that another vehicle, whether it’s a truck or a car, doesn’t see the disabled vehicles and rams into them, and there’s a secondary collision. And people get killed, or they get maimed, or permanently injured for the rest of their lives.
Get away from the roadway. Get on the, as far as you can, away from the traveled lands of traffic. Also, don’t assume that the shoulder of the road is safe.
It is not uncommon for people to look at an accident and veer onto the shoulder. So just because your car is on the shoulder, get it off as far as you can, and you go in the grass if you’re able. If you’re not able, obviously stay in your vehicle, but stay away from moving traffic, because ugly things happen.
Not uncommon to see police officers who are investigating an accident get whacked on the side of the road. Stay away from moving traffic. Make sure you’re okay.
Call an ambulance if you need it. If you don’t need it, then wait until help arrives. Those are the first things you do.
And I would echo that and say, if you’re on the shoulder and there’s a guardrail there, for example, on a highway, and you think to yourself, I can’t, I don’t want to move my car. I just had an accident. Move it.
Get it up the roadway. If you’re on the side and there’s that shoulder there. You know what I’m talking about?
No question. No question. Stay away from the guardrail.
You want as much distance between your vehicle and the traveled cars as possible. I can’t tell you how many times I’ve been on, for example, Lakeshore Drive in Chicago, and two people have a little Fender Bender. A Fender Bender.
And they’ll stop and get out and want to take pictures and make phone calls. And they’re saying, well, I got to worry about my insurance rate. This wasn’t my fault.
Don’t worry about the insurance company’s money. Don’t worry about the property damage. Get off the roadway.
Too many people think that all of a sudden, the insurance company is there to help them, or that their rates aren’t going to go up. Move away. Be safe.
Take care of yourself. No brainer.
I’m thinking back to that one case that we had with the tow truck driver many years ago, where he stopped his job, understandably, but he had to stop to assist that disabled motorist. Do you remember that case?
Oh, I can remember multiple cases like this. I had one case where a tow truck driver in LaSalle County was out helping a disabled vehicle, and a knucklehead truck driver pulled off, was looking for his sunglasses, and he veered onto the shoulder and killed our client. Another case I had in Indiana, where I had a man who was helping another disabled motorist.
He was, again, a tow truck driver again. He got hit by a drunk driver and killed. And that was a great story because someone else in the office had been handling that case.
And we were looking and saying, okay, well, you got to pay this widow. This man had been married to this widow for 40 years, 40 years. And I said, you owe this lady $4 million.
Pay her $4 million. And they scoffed at me and said, this is Indiana. This is not Chicago, Mr. Phillips.
And they offered her a million and a half. I said, that’s not right.
You guys are trying to cheat this lady.
That’s not right. So we tried the case and I got called in late to rescue the case. And we got $25 million from that jury.
It was a record verdict in Indiana. And everybody was talking about that verdict. But my theme of that case was, don’t try and cheat this lady.
And the jury understood that they were trying to do that. Stephen and I just finished another case about a year ago, where we had a man helping a disabled motorist. He was again on the shoulder of the road.
Another truck, 99 cars, had gone around this disabled truck. 99. The 100th vehicle, ironically, was a truck.
Best visibility of any vehicle, he hit and killed our guy. The 100th vehicle. And what we did in that case, we did something fascinating, if you’ll recall.
We subpoenaed every business in the neighborhood to try and get video, and we found one camera on a restaurant that just picked up the roadway. And we were able to see the disabled car, and we were able to count how many vehicles came by until the truck hit it. That’s how we were able to come up with 99 vehicles went around it.
And I hand Stephen a lot of credit on that. He handled most of that case.
I remember they tried to say it was foggy. Remember that? And they tried to say that not a lot of vehicles went around.
There was only a handful of cars that went around. So bad things can happen. And I remember we were able to find that surveillance video from that business across the street and it showed 99 cars, not 5 or 6 like the defendants originally said, but 99 different cars all successfully got around that disabled vehicle.
Do you remember the expert witness they hired who came in? They paid them tens of thousands of dollars to try and explain why vehicle number 100 wasn’t at fault. Right.
And he didn’t want to answer my questions. And I’m asking all these questions and finally I looked at him and I said, you and I are going to have some fun in front of that jury, aren’t we?
All the lawyers were laughing.
They had offered us two billion dollars for that man. He was married. He had four kids.
We said, no, it’s ten.
They offered us five.
We said, no, it’s ten. They offered us eight. We said, no, it’s ten.
They paid us ten.
Case went away. Nice family.
Yeah, really nice family. He was 48, I think, at the time. Working full-time, children, grandchildren, doing the right thing.
I remember he had stopped on his way into work to help that person on the side of the road. Didn’t need to. No reason to, other than he was just a good guy.
Yeah, that was terrible.
I have a question globally about what to do after an accident. What would you say to someone who says, I have my hazard lights on or I have flares? Isn’t that enough?
I don’t need to get out of the way or car should see me.
Get away. We just described two cases where these vehicles were clearly visible and you have distracted drivers. You have people nowadays, lots of people on the cell phone and they’re dialing up a number or they’re listening to music.
Or texting.
Or texting or putting on makeup. You can’t do enough. And I tell people, I say, and some people joke with me about this is they say, well, I had the right away or my hazard lights were on.
And I say, respectfully, you saying you had the hazard lights on isn’t going to make the pain any better when you have a permanent injury. Get out of harm’s way.
Michael, you do a lot of the auto cases in our office or many of them, and you do both catastrophic injury work, but also just a regular broken bone or visit at the physical therapist or emergency room visit. So let me ask you this in the cases that you see. What are your thoughts on photos and videos and taking photos and videos after an accident?
Obviously, you should do it, but what helps you as a personal injury lawyer when you get a set of photos and you’re looking at them for the first time from a client, what helps you? What do you want to see to set the scene?
Well, first and foremost, there’s never been a situation where a client has sent too many photos and videos. The more documentation, the more evidence you have, the better because we can sort through and find the best for negotiating settlement. In terms of the scene itself immediately after an accident, get a wide range of photos and videos.
Sometimes we get clients who say, I took photos, we got everything. And we get a photo and it’s a car zoomed in. You can’t even see the wheel where the accident or the impact happened.
Error on the side of caution, take photos and videos from all angles, from close up, from far away.
Get all the vehicles involved. Yes, two or three vehicles. Don’t just take your vehicle.
You step back and get the line of cars to show what happened.
Exactly.
And any skid marks or gouges in the roadway.
Debris.
Very important physical evidence. Debris, skid marks, any damage. We have a saying in our office that we teach all the lawyers, physical evidence doesn’t lie.
Dense, skid marks. We’ve had cases where a driver will say, I was only going 15 miles an hour. You say, well, really?
Then why did you leave 125 feet of skid marks? And that’s an eye opener.
And I’ve found, and maybe you guys, I presume you agree, that in a he said, she said, that’s one of the phrases you hear in the law oftentimes. Well, this driver said this, the other driver said the opposite. In a he said, she said situation without photographs, the case is pretty difficult to prove.
No question.
So definitely take some photographs of your vehicle, the defendant’s vehicle, the scene, and even videos, if you can, walking around the vehicle. If you’re able to, safely, and you feel up to it.
Safely. Right. Safely.
Stay away. Nine times out of ten. But take photographs.
How about contacting your insurance company or the defendant’s insurance company after an accident, assuming you’re able to again?
You know, a lot of people say, well, I wasn’t at fault, so I called his insurance company or her insurance company. Don’t do that. That is a big mistake.
You’re going to be talked to and talking to people who are trained. And what are they trained to do? They’re trained to investigate the case on behalf of an insurance company or a company.
And they’re trained, what are they trained to do ultimately? Save the insurance company money. Save the company from exposure to liability.
They know how to ask questions and you don’t know what they’re asking and why, but a lot of times they may be trick questions or unfair questions or incomplete questions. Do not talk to the other side, period the end. Contact your insurance company immediately.
Let them know that you’ve got damage to your vehicle. Don’t say it was the other guy’s fault. I mean, you can say that, you should, it was not my fault.
But don’t assume they’re going to accept your word for it. But the reason you need to do that is because a lot of insurance policies say, we’re not going to pay for the damage to your vehicle or protect you if you don’t notify us as soon as possible.
Right.
Because if they want to do their own investigation and if you don’t contact them as soon as possible, they might say, you prejudiced us and our rights. We weren’t able to gather evidence or investigate this. And they might deny you insurance coverage.
And let me just stop you right there. I think that’s a really nuanced point. And there’s two separate things here.
So just to be clear, there’s your insurance company as the injured person or the plaintiff typically. And then there’s the defendant’s insurance company. So can you explain again which one you want to make sure you’re contacting and putting on notice and which one maybe not to contact if you don’t yet have an attorney?
Contact your own insurance company. Let them know. Why?
Because you want to make sure that they can’t claim that they were prejudiced by your lack of notice. Right. You don’t want them to have any excuse not to cover you for your liability or your property damage.
Do not, and I’ll say that again, not contact the defendant’s insurance company. They may call you and they might say, I just want to talk to you. Okay.
That’s not just what they want to do. Tell them, please contact my lawyer. Call my lawyer.
This is his number. And that’s what Phillips Law Offices is here to do. We’re here to protect your rights.
Talk to the insurance company people and let them know what happened. And the defense will start building their defense at that point. But we know not to give them guns and whiskey.
That is by saying stupid things to them.
Can you explain, if the other person’s at fault, why would my own insurance company give me money or reimburse me? Can you explain that?
Under your own insurance policy, you are entitled to have your vehicle fixed, assuming you have collision insurance, which you all should have, quite candidly. You should have liability and collision. You want your property protected.
You also want to contact them and let them know because you probably have uninsured and underinsured motorists on your own insurance policy. And by that, I mean, if the other person does not have insurance or does not have enough insurance, you can collect from your own company the amount that the other side should have paid. So when you buy uninsured and underinsured motorist coverage, which we strongly recommend you do, you should always make sure that you have it and that you’ll pay an extra premium.
It’s worth every dime. I can’t tell you, and the boys can tell you this too. All the people who work here can tell you, we’ve had these ugly truth conversations with these people, where we tell them, yeah, you got hurt really bad, but I’m sorry there isn’t enough insurance from the other side, and you don’t have enough under your own insurance policy.
And let me just add on that, because it’s an important point, and I don’t think a lot of people, even my friends who know what we do, don’t realize this. A lot of drivers in Illinois and elsewhere, they don’t drive with insurance. Or they have the state minimum, which is only $25,000.
And you think these days, that barely covers an emergency room visit. So a lot of people, and I can’t tell you how many calls, and Michael, I’m sure you feel the same way, how many clients we’ve had just in the past 12 to 18 months, where they have a catastrophic injury or enormous case and a ton of damage. And they’re stuck with what the defendant has because they don’t have enough insurance coverage.
And they always say, well, shouldn’t the defendant pay for this? And I agree with them. Morally, they should.
But oftentimes, the defendant’s drivers, most of the people on the roadway, have the state minimum or just above it, which is not nearly enough. So that’s why, again, it’s really important to have your own under an uninsured motorist coverage in a sufficient amount, not just the minimum.
Yeah. Oh, I agree wholeheartedly, and I can’t stress that enough. And don’t have just the minimum.
Don’t have 25,000 or 50,000 or 100,000. Think very seriously about getting a million dollar, what’s called umbrella, which will give you a million dollars in liability insurance if you hurt somebody else, or a million dollars that you can collect under your own policy.
To protect yourself.
To protect yourself.
For your family.
And that premium is about $400 a year. Money well spent. We just finished a case or are finishing a case right now where we had a lady who was an executive who was killed by a driver who came across the center line of a two-lane roadway.
A two-lane roadway, no-brainer, shouldn’t have done it, killed her. She only had $500,000 in uninsured and under-insured motorist. Her claim was in the millions because she was a high-wage earner, and she had two really nice kids, and all she had was $500,000.
Next question, okay, so that’s what’s called under- and uninsured motorist coverage. Next question for you guys, is there any obligation under your own under-
and uninsured motorist coverage to talk to them, to give them a statement, to cooperate with them, your own carrier?
There is an obligation that you talk to your own insurance company and notify them of the accident. But I would not go through the details of it with them because you’re going to file an uninsured, under-insured motorist claim under your own policy. And you want to make sure that they’ve got, well, you know they’ve got the right to ask you the details about how it happened.
They are going to defend, believe it or not, when there’s an under-insured motorist claim, they have all the defenses that the defendant would have to the claim. It’s as though they’re defending the defendant, the wrongdoer. So your lawyer has to prepare you to discuss with you that statement before you give it.
Because the lawyer for the insurance company is trained, they are professional, and they know, again, all the issues, and they can set traps for you if you are not fully prepared and informed by your own lawyer.
I had a situation of that recently where there was actually a video of the crash, and that statement, that recorded statement, they were asking my client questions as if the video didn’t exist. Were you in the crosswalk? How far did you fly?
What part of the car hit you? And all of those questions, they are not asking them to help your client, are they? They are trying to find inconsistencies or reasons not to pay, right?
100%.
Explain that.
Well, they had the video. The video told the story. Yet they were asking questions of our client, that they knew were inconsistent with the video.
That trying to trap him or to trick him to say things to affect his credibility, so then they could say, huh, we don’t believe your client. We think your client, if your client’s lying about the accident, your client’s lying about his pain and his injuries. And that affects the entirety of the case.
And it’s wrong because your client’s not a professional. They don’t know how to describe things like the lawyer does who’s setting them up.
With that in mind, let’s say you have the claim open, you’re proceeding forward with a lawsuit or an injury claim, and you mentioned making it seem like the client’s not telling the truth or the client’s lying. One of the questions that I always get, or that I don’t think people realize, is social media and people using social media during the pendency of their case. I just had a case, well, we’ve had many cases, where we inform or tell the client, you know, please don’t use social media.
It’s not a smart idea to use social media during this case. And they do it anyway, despite the recommendation not to. And they say, well, I’m private.
My social media is private, right, Michael? That’s what they say. I remember you spent an entire summer, basically, having to go through, pursuant to court order, one of our clients’ Facebook.
He had 2,000 posts on Facebook during the pendency of the case. And Michael had to sort through every single post, screenshot it, make a little comment about it, what it showed. And we had to produce that to the judge.
This was a summer during, I think it was law school, and I’m supposed to be doing motions or learning how to write. And I would just show up to the office with a cup of coffee and my iPad scrolling through Facebook screenshotting photos. And it was for a catastrophic injury.
It was a case that we needed to do it for. But nonetheless, it was not a fun experience. And your lawyers have better use of time to help your case in other more meaningful ways.
And I don’t know if you remember this from that case, but that gentleman had a catastrophic spine injury. And you remember he couldn’t walk well, and he walked with a limp, and he had at times terrible pain in his spine and his legs. And he had two young kids.
Do you remember that? At the time. Yes.
And the defendants took three or four photos out of 2,000 and took them essentially out of context to try to show that he wasn’t really that hurt. Remember that? And they had surveillance videos of him.
They went to his home. They went to watch him go vote. Remember he was going to vote?
The courthouse. And we had to scramble with those four photos to show, hey, there’s 1,900 other photos here that show he’s telling the truth. And he was telling the truth.
And what those photos don’t show or the videos don’t show is the next day. You know, remember one of them, he was playing with his kids. I think he was jumping up and down with the kids.
Well, that doesn’t show how he felt the next day and the pain he felt the next day. But the defendants sure like that. So going back to social media, if you had somebody in front of you who asked you, well, Steve, I have this pending case.
I really like Facebook. I really like Instagram. I want to post on social media.
It lets the world know I’m still alive. I’m still doing okay. What would you tell them?
I say, did you ever see the movie Forest Gump? Run, forest, run. Run away from social media as fast as you can.
Do not look back. Do not hesitate. Because I remember that case vividly, and we’re sitting on pins and needles, wondering of the 2,000 photographs they had of him, what are they going to try to use it for?
And how are they going to try to contradict his testimony? Which could sink the entire case. I told him all along throughout the case, stop with the social media.
And what people don’t realize is, no one cares about your photographs and your social media, despite what you think. They don’t care. It isn’t that important.
But it is, you ever hear the phrase, when they read somebody their criminal rights, it can and will be used against you? That’s social media.
Right. It’s not going to benefit you.
No, hold. That’s social media. It can and will be used against you.
And that’s a big defense tactic these days. I presume you’ve seen this in some of your cases, Michael, where the defendants ask in written question, what’s your handle? Have you deleted anything recently?
Have you posted anything recently? And they press, particularly in auto cases, or maybe a slip and fall premises case, and they press that information. And sometimes I’ve had clients say, well, I’m private.
I’m private. I don’t, I’m not a public Facebook or public Instagram. A court could still very well compel you to compile all your data, your photos, your videos, and send them to the other side.
So just because you’re private doesn’t mean you’re protected.
And I’ll add to that, we were just telling this story for social media as it relates to a catastrophic injury. They’ll do it on a small case, too. We had a case involving a facial scar.
We told our client, do not post, do not post, do not post. They posted, I send a demand for settlement to the insurance company. I opened my email one morning and exhibit A of the PDF I opened.
Her face looks fine. On her Facebook, we don’t want to give you as much money as you want. So they’ll find it.
And some people I’ve heard or I’ve had people say, but I use it for business. And I think that may be a very, very nuanced. If it truly is for business, you’re not posting about yourself, your physical abilities, anything personal.
And it truly is just a business post. That may be OK, maybe. But it better be really, really, really specific to your business and your ability to earn a living and support yourself and nothing to do with your injuries, your health, your mental well-being, your emotional well-being, nothing.
Run it by us first. You want to post something for business?
Let us see it.
Because you may be saying things that are going to hurt your case.
Injury Mythbusters Q&A. I feel like there’s a lot of misconceptions in the state, in the United States, about personal injury lawyers, personal injury cases, what to do, what not to do. People see advertisements on TV, they see buses, they see courtroom dramas on TV.
So let’s break down some fact and fiction type things if we can. Michael, you’ve been practicing for a few years. Steve’s been practicing for 40 years, I think.
How many cases to verdict do you have?
I’ve lost count.
How many cases do you think you’ve prepared for trial up to the EVA trial? Many, many hundreds?
Hundreds, hundreds and hundreds.
Probably handled thousands over the years of cases? Record verdicts, record settlements?
Yes, sir.
All right. Let’s break down some injury myth busters Q&A. First question.
Everybody thinks in their initial consult with us that we’re going to be able to predict the outcome of the case or the value of the case. And if somebody were to say in the first conversation, well, what’s the value of my case? How much is this worth?
What would you tell them?
I have been saying since I was a younger lawyer, a younger lawyer, the following. If anybody told you the value of your case right now, they’d be lying. And they’d be lying because we don’t know the other side story.
We don’t know how strong your treating doctors are going to be about your injury. We don’t even really know the extent of your injury. Are you going to have a full recovery?
Are you going to have a partial recovery? How long is that recovery, if it is full, going to take? What are your residual pain and problems?
How much time are you going to miss from work? How much are your medical bills going to be? So when people try to predict, they are not doing their client a service.
And as I started when I said this sentence to begin with, they’re lying to you. Sometimes I can say globally that if it’s a catastrophic injury and I have a pretty good idea that the other side’s liable, I can say your case is worth in the millions. But where in the millions is going to depend on all these different factors.
And I can’t predict. And I don’t want to predict because I’m doing you a disservice.
And on top of that, Michael, you probably have seen this too. Let me know if you agree. You don’t know what’s going to happen in discovery.
You know, discovery is when we exchange documents with the other side. And people start taking depositions. And our clients get prepared for their deposition, give a deposition and we take the other side’s depositions.
And you don’t know what documents the other side may produce or not produce. And you don’t know if there’s going to be something in there where they admit, you know, the doctor when he was performing the surgery hadn’t slept in 36 hours and fell asleep when he was inserting the instrument. That may change the value of the case threefold.
Or alternatively, your client may say something in the deposition. And I’ve had to look at a client after a deposition and say, you know, because of some of the things said in this deposition, we’re going to have a really hard time proving your case.
But to clarify, it’s not because they lied or they didn’t tell the truth or they exaggerated. It’s because they didn’t tell you in advance of the deposition what the issue was that the other side may know about, and you don’t. They may have thought it was unimportant to tell you the lawyer.
And I always tell the lawyers, I always tell the clients, even if you think it’s not important, tell me, because it may be important. And if you think it’s a bad fact, tell me, too, because we can discuss it and discuss how it’s going to impact the case or what factors go into it to kind of tamper down the prejudice it’s going to have on your case.
I would just add one more thing. As Steve said globally, certain injuries, certain surgeries, there’s a general range, but come trial, the way that a witness or our client presents to a jury, how the other side’s lawyers present to a jury, if they’re being offensive or they’re asking questions a jury thinks aren’t appropriate, that can significantly impact the value of a case as well.
Speaking of the value of the case, the public reads about these big verdicts from time to time. And I know after doing this for so many years, nine times out of ten, those big verdicts are being driven by big damages, big injuries, big impact on the family. Sometimes though, those big verdicts can be driven by somebody saying something really stupid during the trial.
A defense attorney, a defense witness says something really stupid. They belittle a widow, they belittle a witness, or they say something offensive. And those can drive a verdict too.
And in light of that, and what you said about everybody sees these big verdicts and big settlements, one of the things that I always hear people say is, oh, spill a cup of coffee, make a million dollars. From that woman in, I can’t remember the rest state.
Stella Leibach in New Mexico.
New Mexico, the poor lady who had the scalding, boiling hot coffee.
That’s a good story. So, the McDonald’s coffee cup case. Coffee, right?
Easy. What’s going on? Why does somebody get a million dollars?
Well, let’s start with the facts. Look at the burns this lady got. Look at the burns she got.
She had second and third degree burns and multiple skin grafts from coffee. Does that look like coffee? No, it’s like acid.
The reason that she was burned so bad is because McDonald’s superheated their coffee. Their coffee was kept way above industry standard. Why?
Because it would last longer.
You have five to seven seconds to get McDonald’s coffee off your lap before it causes these type of burns. Five to seven seconds. Industry standards, about 130 to 140.
You’ve got about a minute.
How hot was that coffee?
100, it was above 185 degrees.
What’s boiling?
212. They had 700, over 700 incidents of people getting burned from the temperature of their coffee. Elderly people, children, moms, dads, when they asked the quality person for McDonald’s the question, is that even drinkable?
No, it will scald you. That lady didn’t do anything other than when she got that cup of coffee.
She was stopped.
She took the lid off that coffee while the vehicle was stopped and the lid wasn’t on properly and it spilled into her lap. All they asked McDonald’s to do was to pay her medical bills, which was $14,000. That’s it.
Right.
And they wouldn’t do it.
They wouldn’t do it. Well, the jury came back with a verdict of about $250,000 and then about a million and a half in punitive damages, punishment. And that million and a half at the time represented the profits from one day’s coffee sales for McDonald’s.
And was justice served?
Of course it was served.
And that’s the story behind the McDonald’s coffee cup verdict.
And then she ended up, I think, whatever state she was in, at the time, I think they ended up reducing her verdict, didn’t they?
They reduced it by 20% because they did find her 20% at fault. And of the punitive verdict, the one and a half million, under the state she was in, which I believe it was Nevada or New Mexico, it was New Mexico, by law, a certain percentage of that punitive verdict went to a jury or school district or something. That’s a myth that’s been perpetuated over the years, but those are the facts.
All right, let me throw out another myth. There’s frivolous lawsuits everywhere and anybody can sue anybody for anything. Michael, is that a myth or is that a fact?
I will say myth. And I will say that because lawyers, we cannot take a case for two or three or four years on a frivolous lawsuit to spend $50,000 to make $55,000 or to make nothing. It does not benefit anyone to go through on a case like that.
And good luck finding real competent legal representation on something that doesn’t have merit.
Have you ever had, and I’ve had it, have you had friends or friends of friends or relatives who have said something like, you guys as plaintiffs, lawyers or injured people bring frivolous lawsuits and there’s a lawsuit crisis in America? Have you ever heard that?
Yes, and from my friends who will remain anonymous, who work in insurance at companies that are making billions and billions and billions of dollars, I do hear that. And then I tell them, we have cases in our office involving amputees, we have cases in our office involving deaths of fathers of five. That’s the line of work that we’re in handling real cases.
And again, it doesn’t benefit us, and we aren’t going to get paid by anyone if a jury of 12 ordinary people see through an illegitimate case. At the end of the day, the value of a case is determined by ordinary citizens, which is candidly a really cool thing about our judicial system. And if they think it’s frivolous, then we’re going to have to think it’s frivolous too.
And let me throw this out there too. When you file a case, if a case is potentially unmeritorious, what happens next? Motion to dismiss.
The court gets an opportunity right from the outside of the case to say, no, this case can’t go forward. And the court gets to accept argument from both sides and decide right from the beginning, before anybody’s entrenched in their position, whether or not the case should go forward. Right?
Right. And then depositions and document gathering, and then the defendants get another opportunity to dismiss the case at summary judgment. Right?
Right. So they get multiple opportunities, if a case they think is not meritorious, to get it dismissed.
And just going back even before the outset of a case, this isn’t something that a lot of people know. At least in Illinois, a physician, a doctor has to sign off anonymously, but they still do have to sign off on the merits of a case. And so, we’ve had situations where the client says, you gotta file this case for me.
We gotta file this case. We’ll go through two, three, four doctors, and they don’t want to put their name on this case. So, there are implicit systems in place to keep out cases that shouldn’t be in the court system.
And let me just expand upon that a little bit and explain that. In Illinois, in order to file a case in medical malpractice, which is a different type of case than a personal injury, injury, auto accident, or fall at a construction site, right? It’s a different, it’s the same area of law, negligence, but it’s a different type of case, fair?
Yes. All right. In Illinois, a physician has to sign off on a written report saying, I believe, as a physician in that area of medicine, the same area as the defendant, that this case should move forward and there was malpractice, right?
Absolutely.
And then we can temporarily, or most of the time, rather, we can, it’s anonymous, right?
Yes. And that way, the doctor doesn’t have to put their name out and be in the medical world as someone who…
It allows people to share, or a physician to share their knowledge and say, this case should proceed forward. I think that there is malpractice here without getting made fun of or lambasted or being ostracized by the medical community, right?
Yeah. And this report isn’t saying the other doctor is an idiot, this other doctor did all these things wrong. It’s just them, in broad terms, saying there is a meritorious case that exists, and this should go forward in the court system.
So, in Illinois, a physician has to sign off on an affidavit signed saying that this is a reasonable and meritorious malpractice case that should move forward, right?
Absolutely. And the public doesn’t realize that in order to proceed with a malpractice case, we have got to get an expert witness, a physician or a professional in that specialty, to review the case before we file it. And we’re not going to get a person who is, quote, plaintiff friendly or who is anti-doctor.
And the reason we’re not going to do that is because we’re going to carry that case. We’re going to handle that case for three to five years. Our overhead continues at our office.
We’re going to pay expert witnesses tens of thousands of dollars. We’re going to work on the case for three to five years.
We can’t afford to take a frivolous case.
We can’t afford to take a case that we don’t think we can win and that we don’t think may have merit. So the malpractice cases that are filed are almost all meritorious, very, very few are frivolous. And notably, if you look at the malpractice filings in this country and specifically in this state, they make up less than 5% of all injury and tort cases.
Less than 5%. If you look at all the civil cases in this country and in the state of Illinois, that is all the non-criminal cases, that means civil, about 5% of those are injury or death cases. Civil cases in Illinois are down by about 51% in the last 10 years.
Does it sound like there’s a litigation crisis, a lawsuit crisis? Absolutely not. Let me repeat, civil lawsuits are down by almost 51% in the state of Illinois in the last 10 years.
And a vast majority of civil lawsuits are businesses suing other business for contract disputes, for trademark, for proprietary, has nothing to do with injury cases.
About 65% of all civil lawsuits are businesses, big businesses, small businesses, suing individuals and other businesses for money. About 65% and about 25% are domestic relations, divorce or child custody.
You’ve got this pie, this big pie.
My grandmother loved to make banana cream pie. But you got this pie and only a small sliver of that pie are injury cases.
That’s it.
There’s no lawsuit crisis in Illinois or this country. There’s an insurance crisis, because the insurance companies don’t want to pay claims.
Is it the insurance companies? Is that why you think the personal injury cases get so much spotlight and get so much negative attention?
The insurance companies have billions and billions of dollars. Google any insurance company, and you’ll see that their profits last year were billions of dollars, with a B, billions of dollars. Well, they can afford to A, hold on to their money, defend the case.
They can also afford to spend a lot of money on advertising, trying to make injured people look like the villain. Injured people can’t afford to pay a lawyer an hourly fee. That’s why they hire a contingency lawyer like us.
We don’t get paid unless we win. We’re not going to take a case that we don’t think we’re going to win.
Last myth, last thing before we wrap up. I feel like I get this question a lot from friends, potential clients, people you meet, the grocery store, restaurant. Is your job like the guys on Suits?
Or is this case going to be like Suits or Bull or Lincoln Lawyer? How would you answer that or what would you say?
The short answer is no. For what it’s worth, better call Saul. I think it’s somewhat accurate, but by and large, the answer is no.
There’s a few movies, I think. Maybe A Civil Action is relatively close.
Great movie.
I think that that’s a good movie, a representative movie, kind of, and there’s some inaccuracies in it. But it’s one of the closer movies. A Civil Action is a John Travolta movie from the 90s or early 2000s, where he takes on a case on behalf of some children who had leukemia and other types of cancers from well water and from ground water.
That movie is kind of realistic. But other than that, most of the law movies are My Cousin Vinny or…
You assigned A Civil Action as a work task for the young lawyers in our office as part of a work task at home assignment.
And I think it took you a little long to watch it. I don’t even know if you’ve watched it.
I’m not much of a movie guy. I’m a book guy.
But in all seriousness, there’s a movie called A Few Good Men with Jack Nicholson as the crazy general or colonel and Tom Cruise. And Tom Cruise ran up a lot of blind alleys to find the key to that case, to defend his clients. And Nicholson was the bad guy.
And Cruise took him on in the court room, and he had some backbone to go after him, even though he was the colonel. And he broke him. He got Jack Nicholson to admit he called a code red.
I’ve seen that in the court room.
Let me ask you that. Have you had any code red moments? Any Tom Cruise, Jack Nicholson, you can’t handle the truth moments?
Absolutely.
All right, give us one quickly.
Oh, my gosh, I’ve had so many of those over the years. The ones that stand out the most was that I had in a case, the president, former president of critical care medicine against me in a case. And when I took his deposition two years before that, he would not answer my questions.
He played games. He played. All he ever said was, I’m the former president of the American Society of Critical Care Medicine.
And I said, you need to answer my question.
He wouldn’t.
When I was getting ready for trial against him, I’ll never forget it.
I had prepared for weeks.
The night before he hit the stand in a four-week trial, we’re exhausted. It’s, we’re three weeks into the trial. The night before he hit the witness stand, I got to the office at 2 a.m. because I woke up.
And I said, I got to rewrite my cross-examination. It wasn’t what I wanted to do. And I rewrote my cross-examination.
And a big part of it was an article that he wrote that was saying the opposite of what he was saying in the trial. And I asked him a lot of questions about that article. And I ended my cross-examination looking at him and say, you know, all these things you said in your article that should have been done, none of them were done here for this lady, were they?
I said, you weren’t being paid by lawyers when you published that article, were you?
We all went in the back, the judge pulled us in the back. It was me against six different lawyers, like it always is. And I felt this tap on my shoulder.
And I turned around and it was the judge.
And he looked at me and said, and the other lawyers could hear this, don’t ask any more questions, you beat the snot out of that guy.
And I can go on and on with these war stories of catching witnesses, you know, making things up. We had another one, we had a doctor who said that he had delivered between five and ten thousand babies. And I had him against me eighteen years before, and I didn’t like him.
So I kept up with all his depositions.
I remember that for like eighteen years, you collected all of his transcripts.
I collect for eighteen years because I’m Italian, right? We remember. And for eighteen years, I had these transcripts.
And he said, I’ve delivered between five and ten thousand babies. I had a scorecard in the courtroom with all the hospitals that he’d worked at. And at each hospital, I knew how many babies he had delivered.
There was one line left for one hospital, and the judge is watching this cross-examination like he was at a ball game eating peanuts because he was loving it. And the guy’s arguing with me, and I just pull up a transcript and say, when you worked at this hospital, didn’t you say you only delivered 200 babies?
He was hedging up, doubling and tripling what he had said years ago about how many babies he had delivered. Yeah.
And it got to the end, and there was only one line left. And he had only delivered like 1,600 babies. And he had to get to a minimum of 5,000.
Well, the last line, he gave me some big number, but I had the transcript from when he was at that hospital, he had only delivered 400. And so the number ended up being like 1,900 rather than 5,000 to 10,000.
Jerry didn’t like that. Jerry didn’t like him.
You remember right after that, what happened? Yeah, the defense attorney called us in the hallway.
I don’t.
Yeah, the defense attorney right after that pulled us in the hallway. He kind of had an angry look on his face and he said something like, I’ll be calling you later or something like that. And then sure enough, the phone rang and they tendered the entirety of his insurance policy that night or the next morning.
And I didn’t want to take it because I knew that the jury was so angry that they put this bought and paid expert on the witness stand.
It was willing to say anything. But I had to because it was a young man who was hurt really bad. But I’ve got dozens of those stories over the years.
Just in terms of the question being about things out of a TV show that is our work like that, didn’t you also have an example of a witness coming to you during a break and saying, hey, ask me about this. This is how he turned and he helped you.
Yeah, that happened too. Witnesses have wanted to help and tell the truth. Their lawyers or for whatever reason wouldn’t let them or wouldn’t let them get the whole story out.
They called and they told me, check this or check that. I could go on and on with these stories. You got quite a few over the course of my career.
But it’s been some pretty cool stuff. We tried a case in Janesville, Wisconsin that they told us we could never ever win. You’ll never win up here.
I kept a foreperson on the jury, a lady, a nurse, in a malpractice case. And they said, why would you keep a health care professional on the jury? I said, because I liked her Harley Davidson jacket.
I thought she’d be a maverick. Well, she ended up being the foreperson. And we got this young man a really nice verdict in a small town.
Because we proved that despite the doctor being a nice guy, he screwed up. He was negligent.
Anything else before we wrap up?
I don’t think so, except I would urge everybody to call their insurance broker and tell them, give me a price on uninsured and underinsured motorist umbrella, personal umbrella, for a million dollars. And not just liability that’s going to protect others, but I want to protect myself.
And I would just add, we talked on a multitude of different topics today, and we kind of started talking about in court, pre-suit, at the scene. You could spend hours going through all of these. And I’m sure we’ll have other episodes where we go in more in-depth on each individual topic.
But in the meantime, if you have a question, by all means, reach out to us. We’d love to talk about it. We sometimes, at least I sometimes take for granted what we do is something that a lot of the public doesn’t get an opportunity to see.
So I’m always happy to fill my friends and family in on the law.
All right. So with that in mind, I hope and we hope that this has been interesting, eye-opening, helps you all feel more prepared out in the world, driving, even just out getting medical care, getting medical treatment for yourself, your family, kids, grandparents, whoever it may be. And if you find this or found this helpful or believe it may be helpful for somebody else, you know, tell your family members about Under and Uninsured Motorist Coverage, make sure they get it.
Please subscribe to the pod, leave a review, share it with your friends and family. I think as we move on and do more and more episodes, we’ll be able to share more and more war stories or real-time updates on things that are going on on interesting cases as we get past kind of the basics here and maybe get into more real-world examples. Again, I’m Stephen Phillips.
This is my dad, Steve Phillips, and this is Michael Phillips. And between us, we probably have over 55, 60 years of experience. And our firm has been here for 76, 77 years in Chicago.
You’ve heard a lot. We’ve had a little fun today with this podcast. A few war stories, but make no mistake, we take what we do very, very seriously.
We are entrusted with the lives of people. One of the biggest things that I think we’re proud of in this firm is we fight like junkyard dogs for a client. And we have a fair number of our opposing lawyers, lawyers who have handled cases against us, as well as defendants themselves, who have asked us to represent their family and their friends and their partner’s friends in injury and death cases.
And I think that speaks volumes of the type of work and the quality of the work that we do. You know, they say, oh, well, you’re the boogeyman, Phillips. I go, yeah, only because I do my job.
But when their ox is being gored, it’s their family member, their partner. They ask us to represent them because they know we do quality work and we push and push and push. And I think that speaks volumes for who we are and what we do.
Well said.
Until next time.
“Automatically transcribed”
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